FEATURE: The Sports Blawg with the Fordham Sports Law Forum
The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.
Will former college athletes force the NCAA to reevaluate the meaning of amateurism and bring clarity to right of publicity law?
Former college athletes have commenced several lawsuits in federal courts nationwide against Electronic Arts (EA) and the National Collegiate Athletic Association (NCAA). These lawsuits concern EA’s use of former athletes’ likenesses in college sports videogames, such as the popular NCAA Football series, without compensation. The plaintiffs allege the use violates their right of publicity. The meaning of amateurism and the future of the right of publicity law hang in the balance.
These lawsuits could possibly shape the future of amateurism and has implications for both former and current student-athletes. Presently, the NCAA requires all student athletes to maintain amateur status—meaning, unlike professional athletes, these students cannot be paid or receive other benefits for their athletic activities. Even though the NCAA has recently agreed to allow member schools to pay student-athletes extra benefits in addition to their athletic scholarships, the NCAA still prohibits using a student’s image for the student’s personal financial gain. Accordingly, under the current definition, a decision requiring EA and the NCAA to compensate current college athletes would eliminate college athletes’ amateur status overnight. Such a ruling would leave the NCAA with two options: (1) redefine amateur status to allow college athletes to be paid a certain amount for use of their image; or (2) definitively require players to waive their right to receive these payments.
Either of these options will require the NCAA to exert additional power over college athletes. Greater NCAA authority over student-athletes would surely invite additional legal challenges to the NCAA’s actions. Already scrutinized for antitrust violations, the NCAA can ill afford additional negative publicity. Regardless of the legal outcome, public opinion is increasingly in favor of compensating college athletes for the use of their images, which would force a shift in the definition of amateurism.
These lawsuits can also to bring clarity to right of publicity law. Right of publicity is a state law doctrine, found in the common law or statutes, that protects people from the unauthorized use of their likeness. As one would expect, the contour of the doctrine varies greatly from state to state. The key question in these suits is: what is the interaction between the state right of publicity doctrines and the right of free speech granted by the First Amendment of the United States Constitution? Courts have borrowed tests from different areas of law, including copyright and trademark, in an attempt to properly balance the First Amendment concerns and other relevant rights at stake.
However, there is no consensus among federal courts as to which test is most appropriate, particularly because the right of publicity is a creature of state law and treatment varies greatly from state to state. For example, some states treat right of publicity as a property tort, while others treat it as a privacy tort. Accordingly, these different concerns may require the application of different tests. Furthermore, a decision from a federal court will not bar the plaintiffs from bringing claims in state courts. Even if the federal courts bring clarity by creating a single, all-inclusive test, plaintiffs may still have the option of taking their claims to state courts, where greater First Amendment may exist under the state constitution. If the state constitution has a provision protecting free speech, the state would be free to supply its own test as long as the test was more protective of free speech than the federal court’s approach—the federal constitution provides a floor, not a ceiling, for individual rights. Therefore, in the long run, ultimate clarity on the right of publicity between federal and state courts may not be an attainable goal. 
One thing is sure: these lawsuits present numerous practical and legal implications for student-athletes, universities, sports associations, and, of course, courts. With elite American professional athletes earning tens of millions for endorsement deals, these former student-athletes have a significant financial incentive in pursuing the litigation. And with the First Amendment undertones, these lawsuits have potential to create constitutional precedent. As famed college hoops commentator Dick Vitale might say, “It’s a knee knocker! It’s gonna be awesome, baby!”
